Excerpt:.....prosecution has failed to prove that the five occupants of the car had knowledge that there was opium in the car and that they were transporting it. the general principle of law that a man is presumed to be innocent till he is proved guilty, does not hold good in such cases. ' i fail to understand how the learned counsel for the accused has cited this case in support of his contention......this revision. 4. one is that the procedure adopted by the trial court under section 251-a of the criminal procedure code was wrong. the report filed before the magistrate was by an excise officer and that it should have been treated as a complaint and therefore the magistrate should have proceeded under section 252 of the criminal procedure code. but there is no force in the argument, because section 20 of the opium act says that when an officer of the excise files a report before a magistrate it would be treated as if it is a report made by the police officer under section 190(1) (c) of the code of criminal procedure. in this view of the matter i cannot find any fault with the manner in which the accused were tried. 5. another point raised by the learned counsel for the applicants is.....

Judgment:ORDER

A.H. Khan, J.

1. The two revisions arise out of the same case and are being disPosed of by a common order.

2. The short facts leading to this case are that on 17-7-1955 a motor car travelling on Bombay-Agra Road was stopped by an Excise Inspector at Shajapur. On being searched it revealed some opium. All the five persons travelling in the Car were arrested and challaned before the First Class Magistrate, Shajapur, who convicted all the accused under Section 9(a) and (b) of the Opium Act. On appeal by the accused, their conviction and sentences were upheld by the Additional Sessions Judge, Shajapur. Now the accused have filed this revision.

3. Two legal points have been pressed in this revision.

4. One is that the procedure adopted by the trial Court under Section 251-A of the Criminal Procedure Code was wrong. The report filed before the Magistrate was by an Excise Officer and that it should have been treated as a complaint and therefore the Magistrate should have proceeded under Section 252 of the Criminal Procedure Code. But there is no force in the argument, because Section 20 of the Opium Act says that when an Officer of the Excise files a report before a Magistrate it would be treated as if it is a report made by the Police Officer under Section 190(1) (c) of the Code of Criminal Procedure. In this view of the matter I cannot find any fault with the manner in which the accused were tried.

5. Another point raised by the learned counsel for the applicants is that a report of chemical analyser was wrongly accepted in evidence because his statement was not recorded. There is no substance In his objection also, because Section 510 of the Criminal P. C., says that a report of the Chemical Analyser (or Examiner) may be used as evidence in an enquiry or trial. Clause 2 of Section 510, Criminal Procedure Code confers a right on the accused to summon the analyser or the examiner but it is admitted that no application for summoning the chemical analyser was made by the accused in this case.

6. Another point on which lengthy arguments have been addressed to this Court is that the prosecution has failed to Prove that the five occupants of the Car had knowledge that there was opium in the car and that they were transporting it. On this point I have been referred to In re Pavadai Goundan, AIR 1957 Mad 292 (A). This case does not support the contention of the learned counsel. Another case referred to in this connection is Narvirchand v. State, AIR 1952 Madh B 17 (B). The fact of the matter is that according to Section 10 of the Opium Act, in prosecutions under Section 9 of the Opium Act, it shall be presumed until the contrary is proved, that all opium for which the accused Person is unable to account satisfactorily is opium in respect of which he has committed an offence under the Act.

This means that if opium is recovered (in the instant case it was recovered during transport) then the persons who were carrying it will be presumed to commit an offence unless they prove their innocence. Here on search of the Car, some opium was recovered and in the circumstances a presumption against all the 5 occupants arises unless they can dispel it otherwise. The general principle of law that a man is presumed to be innocent till he is proved guilty, does not hold good in such cases. The Madhya Bharat case referred to above did not consider the provisions of Section 10 of the Opium Act.

7. I have been also referred to Ishwarcnand Singh v. Emperor, 1 Cri LJ 256 (C), in which the Calcutta High Court has said that the effect of Sections 9 and 10 of the Opium Act is that

'when once it is proved that the accused personhas dealt with opium in any of the ways described in Section 9, the onus of proving that he has right so to deal with it, is thrown on the accused by Section 10. But the commission of an act which may be an offence must be Proved before the presumption comes into play at all and the mere presumption cannot be used to establish the fact.'

I fail to understand how the learned counsel for the accused has cited this case in support of his contention. If anything this case supports my view. In the present case, the fact of the transport of opium having been proved, the Presumption throws a burden on the accused to show that they had a right to trans-port it in the manner in which they were doing.

8. Mr. Jagannath Prasad Gupta, learned counsel for the accused has drawn my attention to certain questions of fact. I do not think it necessary to consider them in revision and to disturb the concurrent finding of both the Courts below.

9. I however reproduce them for what they are worth. The first point urged is that it is unthinkable that so little quantity of opium as 8 1/2 chhataks would be carried all the way from Indore to Agra; and that it is unthinkable that some of the opium will be put in the secret chamber of the Car which was later on welded. The only thing that I can say is no one knows the working of a Criminal mind. It might be that this was merely a trial run, to see whether the members of the watch and ward were on the alert or not.

10. Another point to which attention was drawn is that soon after the opium from the car was seized, it was not properly sealed and as such it cannot be said that it was that which was sent to the Chemical Analyser. But this point does not appear to have been raised before the Courts below. On the face of the record there is absolutely no reason to think that any planting was done.

11. For reasons stated above I find no reasonto interfere in revision. Both the revisions are dismissed. The accused who are on bail are directed to surrender to their bails.